LAW v NEW ZEALAND POLICE [2020] NZHC 717

LAW v NEW ZEALAND POLICE [2020] NZHC 717 [6 April 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000045CRI-2020-404-000046[2020] NZHC 717BETWEEN RAYMOND LAWAppellantAND NEW ZEALAND POLICERespondentHearing: 6 April 2020Appearances: P McNabb for the AppellantC Purdon for the RespondentJudgment: 6 April 2020ORAL JUDGMENT OF HINTON JSolicitors/Counsel:Public Defence Service, AucklandMeredith Connell, AucklandIntroduction[1] Mr Raymond Law appeals against a sentence of 26 months' imprisonmentimposed by Judge Gibson in the District Court at Auckland on 12 February 2020.1This followed Mr Law's entering of guilty pleas pursuant to a sentence indicationgiven on 5 November 2019 by Judge Ronayne.Background and Offending[2] Mr Law pleaded guilty to:(a) five charges of burglary;2(b) one charge of theft of over $1,000 and two charges of theft of under$500;3(c) one charge of failing to answer District Court bail;4 and(d) one charge of breaching community work.5[3] The burglary charges and theft of under $500 charges relate to events in April,May, and June 2019. Mr Law broke into locked areas in various laundromats aroundAuckland and stole various sums of money. He also damaged the premises andremoved CCTV cameras. In total, over $11,000 was taken. This included over $500he took from washing machine lockboxes using a key he stole during an earlierburglary. The charge of theft of over $1,000 relates to a separate incident in February2019 where Mr Law stole a trailer from the forecourt of a business. Much of thisoffending took place while Mr Law was on bail for alleged offending in 2018.[4] The charge of failing to answer District Court bail related to Mr Law's failingto attend a scheduled court appearance on 17 September 2019. Corrections' Provision1 New Zealand Police v Law [2020] NZDC 3037.2 Crimes Act 1961, s 231(1)(a). Maximum sentence ten years' imprisonment.3 Sections 219 and 223(b) and (d). Maximum sentences seven years' and three months'imprisonment, respectively.4 Bail Act 2000, s 38. Maximum sentence one year's imprisonment.5 Sentencing Act 2002, s 71(1)(a). Maximum sentence three months' imprisonment.of Advice to the District Court records that Mr Law explained his failure to appear onthe basis he had been busy with childcare and had forgotten about his court date.[5] Prior to the present offending, Mr Law had received eleven convictions. Hiscriminal history is not before me, but Corrections' report suggests these related torelatively minor driving, dishonesty, drugs, and breach of sentence related offending,this being Mr Law's first sentence of imprisonment.[6] Mr Law has previously, as indicated by the charges on which he was sentenced,been subject to a sentence of community service. His breach of community workcharge relates to his failure to report to a probation officer within 72 hours of receivingthat sentence.[7] He has also been sentenced to a period of community detention. TheCorrections report indicates that there was at least one compliance issue in respect ofthat sentence, but no further details are available.[8] The report also refers to other active dishonesty charges against Mr Lawoutstanding as at the date of his being sentenced by Judge Gibson. These I gather arethe charges relating to the alleged offending in 2018. The report notes those chargeswere to be heard in the District Court at Manukau in late January 2020. Ms McNabb,for Mr Law, advises these charges were dismissed, except for the breach of communitywork charge, which was transferred to the Auckland District Court and is one of thecharges that is the subject of the appeal.Sentence Under Appeal[9] As noted, on November 2019 Mr Law obtained a sentence indication fromJudge Ronayne. The Judge, having considered the "careful" submissions made on MrLaw's behalf by Ms McNabb adopted a starting point of 26 months' imprisonment onthe burglary charges. To this he added four months in respect of the other offending,and a further three months to reflect the fact most of the offending was committedwhile on bail. From this adjusted starting point of 33 months, the Judge indicated aguilty plea discount of 20 per cent, or seven months, would be available, producing anominal sentence of 26 months' imprisonment. As is standard with sentenceindications, there is no reference to any mitigating factors personal to Mr Law.[10] On 12 February 2020, Judge Gibson "accepted" Judge Ronayne's indication,imposing a sentence of 26 months' imprisonment on the charges of burglary and theftof over $1,000 and concurrent lesser sentences in respect of the other charges. I cantake it that the Judge has adopted a starting point of 33 months' imprisonment ontotality, then allowed a 20 per cent discount in respect of guilty plea following theindication. He makes no reference to any consideration of mitigating factors personalto Mr Law.Submissions[11] Ms McNabb says Judge Gibson did not allow her to make submissions inrespect of mitigating factors personal to Mr Law before passing sentence. She submitsthat, had the discounts for which she would have contended been allowed, Mr Law'send sentence would have been a short-term sentence of imprisonment. Ms McNabbtherefore submits that I should reserve to Mr Law leave to apply for home detention.[12] Mr Purdon, for the respondents, accepts that Judge Gibson erred and that theappropriate end sentence is a short-term sentence of imprisonment. He does notexpressly oppose the grant of leave to apply for home detention.[13] The respondents' submissions do highlight, however, a few points that call forfurther consideration of whether home detention is an appropriate sentence.Accordingly, having first briefly set out the relevant approach on appeal, and recordedthe manner of the Judge's error, I will return to the question of whether leave to applyfor home detention should be granted.Approach on Appeal[14] This first appeal against sentence is brought pursuant to s 244(1) of theCriminal Procedure Act 2011. I must allow the appeal if satisfied that, for any reason,either intrinsic to the Judge's reasoning or appearing from additional materialsubmitted on appeal,6 there is an error in the sentence under appeal and a differentsentence should be imposed.7 I must dismiss the appeal in any other case.8[15] In deciding whether to impose a different sentence, I must not simply substitutemy own view for that of the original sentencing Judge.9 Rather, I must be satisfied thesentence is manifestly excessive or wrong in principle.10 Within that framework, thefocus is on the end result rather than the process by which the sentence was reached.11AnalysisShould a different sentence have been imposed, and if so, what?[16] Mr Purdon has responsibly, and in my view correctly, accepted that thesentence was wrong in principle and manifestly excessive. I cannot know, on theavailable material, whether the Judge in fact heard Ms McNabb on the question ofmitigating factors personal to Mr Law. However, no consideration of such factors isapparent on the face of his decision and that is the important point. To the extent thatI have concluded below that discounts for personal factors should have been awarded,the failure to do so was a clear departure from the accepted three-stage approach tosentencing.12 The whole second step was effectively omitted. It was also a departurefrom the requirements of the Sentencing Act 2002 (the Act).13[17] I consider that Mr Law should have received discounts in respect of, first, theimpact of any sentence on his family and, secondly, his demonstrative remorse andrehabilitation efforts.[18] Turning first to the impact on Mr Law's family, I am mindful that at least somedegree of inconvenience and hardship resulting to a convicted person's family is anordinary incident of that person's participation in the criminal justice system. Thatwill not often give rise to a discount. In the case of serious and premeditated offending6 R v Shipton [2007] 2 NZLR 218 (CA).7 Criminal Procedure Act 2011, ss 250(1)-(2).8 Section 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].10 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]–[35].11 Tutakangahau v R at [36].12 R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.13 Sentencing Act 2002, ss 9(2)(f) and 10.the Court of Appeal has said the impact of a sentence on a convicted person's familycan carry little, if any, weight at sentencing.14[19] Yet, the Court of Appeal in Heta held that a discount of about seven per centshould have been afforded to a person convicted of welfare fraud offending torecognise the particular difficulty her imprisonment would cause her family,particularly her two younger children.15 I note that, in saying this, the Court wasobviously mindful of the fact that Ms Heta's eldest son had given up a lucrative job tocare for her younger children, producing especial hardship and inconvenience not asexpressly present here.16 Nonetheless, the point remains that hardship to an offender'sfamily can sometimes be a relevant consideration at sentencing.[20] Other Judges of this Court have afforded similarly modest discounts tooffenders who were principal caregivers until the time of their detention, even inrespect of more serious and premeditated offending than that seen here. This was saidby those Judges to recognise both the hardship caused to the offenders' families, andalso the fact that allowing a quicker return to family life would aid in promoting theoffenders' rehabilitation.17[21] It is significant, in light of those cases, that Mr Law is father, and also caregiverand principal provider to, not one, two, three, or four (as in the cases I have referredto), but eight, children. Until the time of his detention, Mr Law was actively involvedin caring for the children, together with his partner. In a letter of remorse, Mr Lawsays his partner has struggled to care for eight children, three of whom are infants, onher own. That is not hard to believe. The sheer number of children involved, and MrLaw's prominent role in their lives until his being remanded in custody, satisfies methat a compassionate deduction from his sentence is appropriate in the particular,somewhat unusual, circumstances of this case.[22] Mr Law told the author of Corrections' report, and wrote in his letter ofremorse, that he stole in order to support his family. Obviously, that does not excuse14 McGregor v R [2015] NZCA 565 at [46].15 Heta v R [2012] NZCA 267 at [38].16 See [35].17 R v Walker [2017] NZHC 2303 at [18]; R v F [2018] NZHC 3377.his actions, but Mr Law has indicated he understands as much. In his letter of remorse,Mr Law accepts that he has brought shame on his family and himself through hisactions, and that he has not acted, in his words, as a "responsible father, partner, andson" by seeking to support his family through dishonesty offending. He realises that,practically, they are also victims of that offending. He says he accepts that it isimportant that he works to be able to overcome financial stress in a lawful manner. Itis material that the author of Corrections' report considered Mr Law to be genuinelyremorseful and insightful in their interview and noted an offer on his part to makereparations once released.[23] The report writer's positive impression is supported by the contents of acertificate attached to the appellant's submissions. This details Mr Law's attendanceat a work programme in the kitchen at Mount Eden Correctional Facility. Mr Law'swork ethic, punctuality, and attitude are described as "very good", and the supervisorstates that Mr Law was "polite and always keen to work", tending to "keep his headdown and just do the work without a fuss." This aligns with Mr Law's comments tothe report writer, who he told that he had enjoyed studying towards a carpentryqualification in the past, but that he found the associated academic work hard.[24] Having reviewed these materials and considered Mr Law's familycircumstances and the impact of imprisonment on them, I am satisfied that thesentence imposed in respect of Mr Law's offending should emphasise assisting him inhis desire to rehabilitate and reintegrate into the community.[25] I am satisfied that the purposes of deterrence, denunciation, and communityprotection are adequately served by Mr Law's time spent on remand before hissentencing. This is Mr Law's first time in prison, and in his letter to the District Court,he said he had been distressed by what he has seen in there. Certainly, it has beennoted elsewhere that imprisonment is particularly harsh on those imprisoned for thefirst time, and that imprisonment can hamper rehabilitation by exposing first-timeprisoners to even greater criminality.18 I am satisfied that Mr Law's sooner returning18 See R v Hernton HC Palmerston North CRI-2007-031-536, 18 December 2009 at [21]; Kaihau vNew Zealand Police [2012] NZHC 191 at [53]; and R v Tarawa [2018] NZHC 3205 at [41].to his family will both lessen the blow to them and better assist in his rehabilitationthan lengthening his time in custody.[26] For these reasons, I am satisfied that a discount of about ten percent in respectof personal mitigating factors is appropriate.[27] From the starting point of 33 months' imprisonment adopted (with which noissue is taken on appeal, and which appears within range), and rounding in Mr Law'sfavour, this produces an adjusted starting point of 29 months' imprisonment. Applyingalso the 20 per cent guilty plea discount, and again rounding in Mr Law's favour, thisproduces a notional end sentence of 23 months' imprisonment. That is a short-termsentence.19 The question of home detention therefore arises.Should leave be reserved to apply for home detention?[28] There is as yet no report as to whether Mr Law has a suitable residence forhome detention. Therefore, today I must sentence him to 23 months' imprisonment.The question, pursuant to s 80I of the Act, is whether I would have instead imposed aperiod of home detention had a suitable residence been available.[29] There is no presumption in favour of home detention being imposed. Whereavailable as a short-term sentence of imprisonment would otherwise result, asentencing court must determine whether home detention is appropriate, having regardto the principles and purposes of sentencing.20 In Hill, the Court of Appeal noted thathome detention is most appropriate in cases where emphasis needs to be placed on therehabilitative and reintegrative purposes of sentencing, observing that:21Where an offender is motivated to change, and where there is a realisticprospect that he or she will be able to change, there are obvious benefits in asentence of home detention, both from society's perspective and from that ofthe offender.[30] As I have noted above, Mr Law has demonstrated, especially since beingconfronted with the realities of imprisonment during his time on remand, insight into19 Sentencing Act 2002, s 15A.20 R v Vhavha [2009] NZCA 588 at [31].21 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [37].the reasons for his offending, recognition of his culpability, and a genuine desire tochange. For these reasons, I consider a sentence promoting rehabilitation andreintegration is appropriate in this case, and that achieving those objectives will beundermined by the imposition of a custodial sentence. Subject to the furtherconsideration below, I am satisfied a sentence of home detention is appropriate.[31] The remaining question then, in terms of the guidance in Hill and the facts ofthis case, is whether there is a realistic possibility that Mr Law will change. This isnot his first offending. It is clearly deliberate rather than impulsive offending and Iam very concerned that much of it was committed while on bail.[32] Mr Law's proven history of non-compliance with community-based sentencesand failure to answer bail raise concerns as to his likelihood of compliance with homedetention and call into question the rehabilitative benefits that sentence can offer.[33] In particular, I note Mr Law would almost certainly seek home detention to hishome address, where he would be able to help his partner and children but also besubject to the same financial stress that led to the present offending. While he can ofcourse seek leave to obtain employment, nothing before the Court suggests anydefinite offer or plan has been made in this respect. Mr Law's being able to obtaingainful employment to support his family, and begin to make some reparations to thevictims, is an essential aspect of the rehabilitative benefits home detention would offer.Until then, Mr Law and his family will be dependent on social welfare, with the stressthat brings.[34] Yet, I am persuaded that Mr Law's time on remand has greatly affected him,and that this will hopefully have motivated him to live up to the expectations heexpressed for himself in his Corrections interview and letter of remorse. Additionally,none of the previous community sentences or bail conditions with which Mr Lawfailed to comply were electronically monitored. The electronically monitored natureof home detention provides an additional incentive for, and assurance of, Mr Law'scompliance.[35] Accordingly, I am of the view that, if a suitable residence had been available,I would have sentenced Mr Law to a period of home detention.Result and Orders[36] For all of the above reasons, the appeal against sentence is allowed. Thesentences imposed by Judge Gibson in the District Court at Auckland are quashed; andthe following sentences, all of which are to be served concurrently, substituted:(a) in respect of each charge of burglary, 23 months' imprisonment;(b) in respect of the charge of theft of a trailer, 23 months' imprisonment;(c) in respect of the charge of stealing $499 in cash, ten weeks'imprisonment;(d) in respect of the charge of theft of $55 in cash, three weeks'imprisonment;(e) in respect of the charge of failure to answer District Court bail,14 weeks' imprisonment; and(f) in respect of the charge of breaching community work, three weeks'imprisonment.[37] Pursuant to s 80I(2) of the Act, I make an order granting Mr Law leave to applyto the District Court as the court of first instance for cancellation of the abovesentences of imprisonment and substitution of a sentence of home detention if asuitable residence is identified.[38] I am obliged to both counsel for their very helpful submissions.______________________Hinton J